BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
100. In the course of the proceedings, the respondents conceded that by
virtue of there not being in place a lawful system for dealing with LPP, from
January 2010 the regime for the interception/obtaining, analysis, use,
disclosure and destruction of legally privileged material had not been in
accordance with the law for the purposes of Article 8 § 2 of the Convention
and was accordingly unlawful. The Security Service and GCHQ confirmed
that they would work in the forthcoming weeks to review their policies and
procedures in light of the draft IC Code and otherwise.
101. The IPT subsequently held a closed hearing, with the assistance of
Counsel to the Tribunal (see paragraph 132 below), to consider whether any
documents or information relating to any legally privileged material had
been intercepted or obtained by the respondents. In a determination of
29 March 2015, it found that the intelligence services had only held two
documents belonging to any of the claimants which contained material
subject to LPP, and they neither disclosed nor referred to legal advice. It
therefore found that the claimant concerned had not suffered any detriment
or damage, and that the determination provided adequate just satisfaction. It
nevertheless required that GCHQ provide an undertaking that those parts of
the documents containing legally privileged material would be destroyed or
deleted; that a copy of the documents would be delivered to the
IC Commissioner to be retained for five years; and that a closed report
would be provided within fourteen days confirming the destruction and
deletion of the documents.
102. Draft amendments to both the IC Code and the Acquisition and
Disclosure of Communications Data Code of Practice were subsequently
put out for consultation and the Codes which were adopted as a result in
2018 contained expanded sections concerning access to privileged
information.
B. Intelligence sharing
1. British-US Communication Intelligence Agreement
103. A British-US Communication Intelligence Agreement of 5 March
1946 governed the arrangements between the British and United States
authorities in relation to the exchange of intelligence information relating to
“foreign” communications, defined by reference to countries other than the
United States, the United Kingdom and the Commonwealth. Pursuant to the
agreement, the parties undertook to exchange the products of a number of
interception operations relating to foreign communications.
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